Thirsty States Take Water Battle To Supreme Court

A dispute over Texas' access to the Kiamichi River, which is located in Oklahoma, has started a longer legal battle that is headed to the Supreme Court.

Joe Wertz for NPR

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Originally published on April 22, 2013 12:39 pm

On Tuesday, Oklahoma and Texas will face off in the U.S. Supreme Court. The winner gets water. And this is not a game.

The court will hear oral arguments in the case of Tarrant Regional Water District v. Herrmann, et al. The case pits Oklahoma against Texas over rights to water from the river that forms part of the border between them. Depending on how the court decides, it could impact interstate water-sharing agreements across the country.

Keeping Up With Texas

To understand what the fight is all about, you have to go to the Texas side of the Red River. North Texas is one of the fastest-growing regions in one of the fastest-growing states. Cities like Arlington and Fort Worth have enjoyed a surge of growth that's brought new jobs, businesses and development.

The future looks bright for this part of Texas, but it also looks dry. Drought has hit Texas particularly hard over the past couple of years. Water officials say the North Texas region's growth is outpacing the water supply nearby.

"All of the locations — watershed locations — close by have been tapped for us," says Linda Christie, government relations director for the Tarrant Regional Water District. The district is the water authority for an 11-county stretch of north Texas that includes Fort Worth. "So now we're going to have to go 200, 300 miles. And most of it would be water that is being pumped uphill."

The Red River, less than 75 miles from Fort Worth, seems like an ideal solution to the Tarrant Water District's problem. It forms the border between Oklahoma and Texas as it flows southeast on its way to the Gulf of Mexico.

Texas and Oklahoma already have a formal agreement on how to share water from the Red River. In 1980, Congress ratified the Red River Compact, giving the two states — along with Arkansas and Louisiana — an equitable apportionment of water from the river and its tributaries.

But what's "equitable" is arguable. And that's what the Supreme Court case is all about.

The Red River lies entirely within the state of Oklahoma. Texas argues that it can't get its share of the Red River watershed from the Texas side of the river, so it needs to reach across the river into southeastern Oklahoma to get it.

Border Battle

Southeastern Oklahoma is the opposite of North Texas. The population is low and poverty is high. The people may be poor, but the land is water-rich, thanks to a confluence of rivers and streams, and reservoirs built with federal funding.

Cities and towns throughout the state rely on this region for their water. Texas has long wanted to dip its straw here, too.

Texas has tried to buy Oklahoma water from the state, its cities and towns, and its Native American tribes. But Oklahoma lawmakers have blocked those efforts with a string of laws restricting out-of-state water exports.

The view in Texas is that Oklahoma isn't even using its full allocation of Red River water. Oklahomans respond that Texas hasn't gotten serious enough about conservation.

Ellis authored some of those protectionist laws that restricted out-of-state water exports. He also distributes bumper stickers he had printed that read, "Don't Sell Oklahoma Water." When it comes to water, Ellis says every state is out for itself, especially in a drought. He doesn't believe Texas will be a good neighbor.

"It's like giving Jack the Ripper a set of hunting knives on his promise to only use them at the dinner table. I'm telling you, right now it's not going to happen," Ellis says.

Water Legalese

In 2007 — citing the compact — the Tarrant District sought permission from Oklahoma regulators to tap the Kiamichi River, a Red River tributary located entirely within Oklahoma. Oklahoma said no, arguing that the compact does not supersede the state's own authority over a water resource within its borders. The dispute has been in court ever since.

The lower courts have agreed with Oklahoma so far. But Christie says the Tarrant Water District is encouraged by the Supreme Court's decision to hear the case. And the Obama administration has sided with Texas, too. In a friend-of-the-court brief, the U.S. solicitor general worried about the impact to North Texas' population growth, and argued that the 10th Circuit Court of Appeals improperly assumed Oklahoma's laws preempt the Red River Compact's authority.

State and local policymakers and water authorities throughout the country are closely watching the outcome of the case, says Stephen Draper, a water expert who helped write guidelines for interstate water sharing for the American Society of Civil Engineers. Here's why: The Red River Compact contains a lot of the same boilerplate language used in other state-to-state water sharing agreements.

"It all revolves around the question of whether water is a commodity in and of itself," Draper says.

If Oklahoma's protectionist water laws are upheld, Draper says other states could be inspired to pass similar laws of their own.

Joe Wertzis a reporter for StateImpact Oklahoma. StateImpact is a collaboration between NPR and member stations examining the effect of state policy on people's lives.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

RACHEL MARTIN, HOST:

When you think of the Oklahoma-Texas rivalry, football probably comes to mind.

(SOUNDBITE OF OKLAHAMA-TEXAS FOOTBALL GAME)

UNIDENTIFIED SPORTSCASTER: Red River Rivalry is on. The game never gets old. It always has a huge meaning.

MARTIN: But on Tuesday, the two states will face off in the U.S. Supreme Court. The winner gets water. And as Joe Wertz from member station KGOU reports, this is not a game.

JOE WERTZ, BYLINE: The story begins in North Texas, one of the fastest growing regions in one of the fastest growing states. Cities like Arlington and Fort Worth are expanding. Jobs, businesses and new development are booming.

LINDA CHRISTIE: It's a continuous rooftop from Dallas all the way to the Oklahoma border.

WERTZ: Linda Christie is the government relations director for the Tarrant Regional Water District, the water authority for an 11-county swath in north Texas. She says this economic engine is fueled, in part, by water. But drought has hit Texas hard. And she says all this growth could dry up.

CHRISTIE: Well, you can't have economic development of an area without a sustainable, stable water supply. All of the locations - watershed locations close by have been tapped for us. So now, we're going to have to go 200, 300 miles. And most of it would be water that is being pumped uphill.

WERTZ: The Red River seems like an ideal solution. It's fed by the Rocky Mountain snowpack. [POST-BROADCAST CORRECTION: The Red River is not fed by the Rocky Mountain snowpack.] And it forms the border between Oklahoma and Texas as it flows southeast toward the Gulf of Mexico. The two states have a formal agreement on how to share water from the river. In 1980, Congress ratified the Red River Compact, giving Oklahoma and Texas, along with Arkansas and Louisiana, an equitable apportionment of water from the river and its tributaries. But what's equitable is arguable. Christie says Texas has to reach across the river to get its fair share.

CHRISTIE: The problem is, the Red River lies entirely within the state of Oklahoma.

(SOUNDBITE OF WATER FLOWING)

WERTZ: Southeastern Oklahoma is the opposite of North Texas. Boarded-up storefronts decompose next to abandoned gas stations consumed by weeds. The people here are poor. But the land is water-rich, thanks to a confluence of rivers and reservoirs built with federal funding. Cities and towns throughout Oklahoma rely on this water. And the state has blocked Texas' efforts to tap it. And here's where the Supreme Court comes in: Texas says that 1980 compact gives it access to water that flows into the Red River, including water in the Kiamichi River.

CHRISTIE: And you look at the attachment that describes the sub-basin - and it's highlighted in pink - it shows that it goes across state boundary lines.

WERTZ: And that's the rub. The Kiamichi River lies entirely within Oklahoma's borders. Oklahoma argues the Red River Compact authority does not supersede its own.

State Sen. Jerry Ellis' Capitol office is 200 miles away from his Southeastern Oklahoma district, but he's still surrounded by water. There's a small water fountain in the middle of his office wall.

(SOUNDBITE OF WATER FLOWING)

WERTZ: A piece of paper is taped to it, and it bears a handwritten message: Water For Texas No More. Ellis says North Texas hasn't gotten serious about conservation, and is lying about its water needs.

WERTZ: Sen. Ellis authored some of those protectionist laws that restricted out-of-state water exports. When it comes to water, Ellis says every state is out for themselves, especially in a drought. He doesn't believe Texas will be a good neighbor.

ELLIS: You know, it's like giving Jack the Ripper a set of hunting knives on his promise to use them only at the dinner table. I'm telling you right now, it's not going to happen.

WERTZ: For years, Oklahoma and Texas have been trading legal and PR attacks in the Tarrant case. Oklahoma has won all the lower court battles, so far. But Texas is encouraged that the Supreme Court agreed to hear the case. Tarrant hopes Oklahoma's anti water-export laws are struck down, and the authority of the interstate compact is reaffirmed. The Tarrant water district has also been emboldened by a friend-of-the-court brief filed by the U.S. solicitor general, who sided with Texas.

STEPHEN DRAPER: It all revolves around the question of whether water is a commodity, in and of itself.

WERTZ: That's Stephen Draper, a water expert who helped write guidelines for interstate water-sharing for the American Society of Civil Engineers. He says the outcome of the Oklahoma-Texas water fight could have national ripple effects. Here's why: The Red River Compact contains a lot of the same boilerplate language used in other state-to-state, water-sharing agreements. If the court upholds Oklahoma's anti-export laws, Draper says other states could be inspired to pass similar laws of their own. For NPR News, I'm Joe Wertz.

(SOUNDBITE OF MUSIC)

MARTIN: That story comes to us from StateImpact, a collaboration between NPR and member stations.

(SOUNDBITE OF MUSIC)

MARTIN: And you are listening to WEEKEND EDITION, from NPR News. Transcript provided by NPR, Copyright NPR.